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Ocean Development & International Law

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Regulating Near-Space Activities: Using thePrecedent of the Exclusive Economic Zone as aModel?

Hao Liu & Fabio Tronchetti

To cite this article: Hao Liu & Fabio Tronchetti (2019): Regulating Near-Space Activities: Using thePrecedent of the Exclusive Economic Zone as a Model?, Ocean Development & International Law,DOI: 10.1080/00908320.2018.1548452

To link to this article: https://doi.org/10.1080/00908320.2018.1548452

Published online: 17 Feb 2019.

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Regulating Near-Space Activities: Using the Precedent ofthe Exclusive Economic Zone as a Model?

Hao Liua and Fabio Tronchettib

aInstitute of Aviation Law and Standard, Beihang University, Beijing, China; bInstitute of Space Law andStrategy, Beihang University, Beijing, China

ABSTRACTThe deployment of high-altitude vehicles in near space with the pur-pose of providing Internet, communication, and other services repre-sents the new frontier of aerospace activities. Near-space operationsare attracting growing interest due to their mult-purpose nature andtheir anticipated high profitability. Despite such positive perceptions,near-space plans are, however, hampered by the uncertain inter-national legal status of near space. Using the precedent of the exclu-sive economic zone (EEZ), this article suggests a new categorizationof the near space as the exclusive utilization space (EUS) and a setof rules to manage its utilization.

ARTICLE HISTORYReceived 22 March 2018Accepted 8 June 2018

KEYWORDSEconomic utilization space;exclusive economic zone;innovation; near space

Introduction

The utilization of near space represents the new frontier of aerospace activities.Technological advancements are rapidly making it possible to operate in the area com-prised between 18 and 100 km of altitude (from 59,005 to 328,083 feet), the so-called“near space,” to provide communication, navigation, sensing, Internet, and other serv-ices.1 Until now, the near space has remained virtually unutilized and activities havebeen concentrated either at lower altitudes (the core of civil aviation operations takesplace below 38,000 feet above sea level) or in outer space (beyond the altitude of100 km). Several factors are, however, contributing to change this trend.Near-space initiatives began emerging in the United States more than two decades

ago with various attempts to develop vehicles capable of performing long-durationhigh-altitude operations.2 These initiatives were, however, largely unsuccessful3 and didnot lead to marketable products.4 Recently, near space has once again caught the atten-tion of investors, resulting in the launch of new projects and the development of near-space vehicles, including airships, balloons, and various kind of high-altitude platforms.These projects have received significant media coverage, probably due to the notorietyof the issues involved and their ambitious goals.5 For example, in 2013 the U.S. com-pany Google X (now simply X) announced Project Loon, an initiative intended to createan aerial wireless network through the placement of balloons at altitudes between 18 to25 km.6 Similarly, in 2014, Facebook unveiled the Facebook Internet project with the

CONTACT Hao Liu liuhaobeihang@yahoo.com Institute of Aviation Law and Standard, Beihang University,Beijing 100083, China.� 2019 Taylor & Francis Group, LLC

OCEAN DEVELOPMENT & INTERNATIONAL LAWhttps://doi.org/10.1080/00908320.2018.1548452

goal of deploying a high-altitude network of solar-powered unmanned aircraft to fur-nish Internet capability to underserved areas.7

The near-space sector has also been gaining ground in Asia, with Chinese companiesquickly taking the lead. For instance, the company Kuang-Chi is developing helium-filled balloons and other kinds of lighter-than-air vehicles to provide aerial surveillance,communication, near-space tourism, and wireless WiFi transmission to remote areas.8

China has also developed solar-powered unmanned aerial vehicles (UAV) that can pro-vide natural disaster monitoring and response, sea area surveillance, and WiFi mobilecommunication services.The renewed interest toward near space derives from three factors. First, its use

promises to be highly profitable. A recent study estimates the high-altitude platformsmarket to grow at an annual rate of 8.7% and to reach a value of US$4.77 billion by2023.9 Second, near space offers several opportunities for startup companies and new-comers.10 Conversely, traditional areas of operation, such as the airspace and outerspace, lack similar conditions; indeed, both environments are experiencing growing lev-els of congestion11 and competition that substantially reduce market shares for newoperators.12 Third, high-altitude platforms are cheaper to launch and operate thansatellites.13

Despite these positive premises, near space commercial operations still face two chal-lenges. The first one is of a technical nature and concerns the difficulties inherent inundertaking long term activities in near space; in this regard, the relative strength oflightweight structures, energy storage capacity, thermal management, and the overallreliability of vehicles are the most problematic aspects.14 The second challenge is relatedto the uncertain legal status of the near space; as no international legal regime specific-ally regulates it, the rules governing operations therein remain doubtful.15

A key difference between these two challenges is the fact that while efforts to addressthe technical obstacles to operate in near space are being undertaken,16 no comprehen-sive initiative to clarify the applicable legal regime is currently underway. This articleargues that this situation is untenable and that the time to deal with the fundamentallegal questions associated with the use of near space has arrived. Indeed, the presentstate of uncertainty harms business plans and innovation because it creates doubts onthe permissibility of an activity, the modalities of its implementation, and its possiblerevenues. The current legal environment is particularly harmful to near-space projectsof an international nature,17 namely, those involving the deployment of a system ofvehicles, platforms, transmitters, and various links in the near space above foreign terri-tories to offer wireless communication and other services.18 This kind of venture isgaining ground among investors because it holds the potential to generate substantialrevenues.19 Nevertheless, it is precisely in that context that the ambiguous legal relation-ship between the state above whose territory the high-altitude vehicles are deployed andthe operator of such vehicles, together with complex questions relating to sovereigntyand security, may compromise such ventures, if not totally preclude them.There are thus several legal factors that interfere with the realization of near-space

operations. In order to overcome these obstacles, the authors of the present article havelooked into the realm of international law in search of a model for the elaboration of alegal regime applicable to the near space. This research has led to the international law

2 H. LIU AND F. TRONCHETTI

of the sea, specifically to the precedent of the exclusive economic zone (EEZ).Interestingly, the use of the international law of the sea as a model to regulate otherinternational areas is not novel; for example, the international law of outer space waslargely modeled on the precedent of the high seas’ regime.20 Arguably, the provisions ofthe 1982 Law of the Sea Convention regulating the exclusive economic zone are particu-larly suitable to structure the near space’s legal regime. On the one hand, the currentlevel of uncertainty and dissatisfaction in regard to near space resembles, to a certainextent, that which existed at the time the EEZ regime was developed; on the otherhand, the rules governing activities in the EEZ, if suitably modified, could be used toclarify the rights and duties of the entities engaged in near-space operations and tofacilitate their overall management.Based on this assumption, the present article suggests a new legal categorization of

near space as the “exclusive utilization space” (EUS). Accordingly, the legal status ofnear space should be distinguished from that of national airspace and outer space.Essentially, under this proposal, the area comprised approximately between the altitudeof 18 to 100 km (between 59,005 to 328,083 feet) above land territory and the territorialsea, now labeled the exclusive utilization space (EUS), would lie outside of national sov-ereignty and be regulated by a set of basic rules intended to maximize its profitable andsustainable use. The authors of the present article believe that the establishment of aseparate and formalized legal regime would contribute to (a) clarify the legal status ofthe near space; (b) stimulate technological development and investments in the near-space sector; (c) eliminate unnecessary obstacles to the international utilization of nearspace; (d) put in place a level playing field for operators; (e) enable the largest numberof countries and users to benefit from it; and (f) prevent the emergence of disputes.The EUS proposal is not an attempt to undermine the sovereign rights and the security

interests of the state above which an exclusive utilization space would be located, a statethat can be designated as the “underlying state.” On the contrary, while the EUS wouldnot be part of its territory, such a state would retain several sovereign prerogatives overit, including the right to (1) decide whether and how to establish it; (2) use it on an a pri-ori basis; (3) bilaterally negotiate the conditions to be complied with by foreign entities;and (4) regulate and enforce safety and security matters in relation to the activities carriedout therein. Overall, the EUS idea attempts to balance the sovereign interests of theunderlying state with the creation of economic opportunities in the near space.As indicated, the EUS proposal draws inspiration from the concept of the exclusive

economic zone (EEZ); indeed, despite essential differences between the EEZ and nearspace, there are several rules governing the former that, if adequately modified, couldbe used as a model to shape the legal regime of the latter.After a few preliminary sections analyzing the current status of near space and

describing the core elements of the exclusive economic zone, the main elements of theexclusive utilization space proposal are presented.

Near Space: An Analysis

Spatial Delimitation

Near space constitutes an intermediate or buffer zone between airspace and outerspace.21 Indeed, due to its physical characteristics, it naturally separates these two areas

OCEAN DEVELOPMENT & INTERNATIONAL LAW 3

because neither traditional civil aviation activities nor space operations can be per-formed therein.22 Commercial passenger aircrafts can safely fly up to an altitude of12 km (38,000 feet);23 beyond that point, the air becomes increasingly less dense untilthe moment where either the wings cannot generate sufficient lift or the engines cannotproduce enough thrust.24 Additionally, air navigation services (those services providedto air traffic during all phases of operations), cannot be effectively performed above thealtitude of around 18 to 20 km above sea level (between 59,005 to 328,083 feet), the so-called flight level (FL) 600. Indeed, existing air navigation technologies were developedto perform at lower altitudes and they have not yet been adapted to function innear space.25

The altitude of 100 km (328,083 feet) represents the unofficial starting point of outerspace because at around that altitude, the atmosphere becomes too thin to support aero-nautical flight and a vehicle needs to travel faster than orbital velocity to derive suffi-cient aerodynamic lift to sustain itself.26 This reality is reflected in the practice of anumber of states that have recognized 100 km (328,083 feet) as the limit separating theirnational airspace from outer space. For instance, Australia,27 Kazakhstan,28 andDenmark29 have enacted national space legislation applicable to activities occurring atan altitude of 100 km or higher.Thus, even though international law does not set the precise spatial delimitation of

near space, there is a general understanding of where its boundaries lie.

The Legal Status of Near Space

There is no consensus among scholars or states on the legal status of near space.30 Sucha controversy derives from the lack of international treaties regulating it. It is thereforesafe to say that near space represents a gray area in international law, a zone of ambigu-ity at the edges of both airspace and outer space.From a legal perspective, the fundamental question is whether near space should be

assimilated to airspace, to outer space, or whether it should be deemed to have a separ-ate legal status. In the absence of any international legal instruments specifically govern-ing it, the most effective approach to answer this question is to analyze existing air andspace law conventions. While these conventions do not specifically address near space,they may provide useful elements to determine what legal regime ought to apply.The 1944 Convention on International Civil Aviation (commonly referred to as the

Chicago Convention)31 constitutes the pillar of the public international air law system.The Chicago Convention, which is widely ratified, establishes the fundamental rules reg-ulating international transportation by air.32

Article 1 of the Chicago Convention is of paramount importance insofar as it recog-nizes a state’s complete and exclusive sovereignty in the airspace above its territory.33

Article 2 then clarifies that the territory of a state includes its land areas and territorialwaters.34 In the exercise of this sovereignty, the underlying state is entitled to apply itslaws and exercise its jurisdictional powers within its national airspace.35

The provisions of Article 1 were inspired by security concerns36 and were a means ofprotecting national soil from hazardous activities and foreign attacks.37 Accordingly, theChicago Convention prohibits aircraft from entering a foreign national airspace without

4 H. LIU AND F. TRONCHETTI

prior authorization by special agreement.38 Though they enjoy several rights, states par-ties to the Chicago Convention are under the obligation to ensure the safety of aircrafttransiting through their national airspace39 and to manage air traffic pursuant to theInternational Civil Aviation Organization (ICAO) Standards and RecommendedPractices (SARPs).40

Most importantly for our discussion, the Chicago Convention does not set a verticallimit to state sovereignty. Consequently, one is left to wonder what is the upward limitof a state’s national territory and whether or not near space is included within it. Inthis regard, two views have been proposed. The first one claims that a state’s sover-eignty extends vertically with no limits until the point where outer space begins. Thisview is rooted in the old Latin maxim “cuius est solum est usque at coelom”: “Whose isthe soil, his it is up to the sky,” or in more simple terms, “He who possesses the landpossesses also that which is above it.” Thus, under this construct, near space would bepart of a state’s national airspace and subject to its laws and control. Already in 1906,Professor Westlake advocated that “if there exists a limit as to the sovereignty of theState over the oceanic space, none exists for the sovereignty of the State over the airspace.”41 More recently, Reinhardt stated that “if an area cannot be considered outerspace then it must be considered sovereign airspace by default.”42 The second line ofthought argues that national airspace should extend vertically as high as a state canenforce its sovereignty,43 specifically, up to the point where air navigation services canbe effectively provided or, at least, up to the highest point where airplanes can fly. Forexample, Professor Cooper claimed that “The Chicago Convention … deals with noareas of space other than those parts of the atmosphere where the gaseous air is suffi-ciently dense to support balloons and airplanes.”44 Basically, the proponents of this viewutilize the criterion of effectiveness in exercising jurisdictional powers to determine theextent of the national airspace. Therefore, under this approach, near space would not bea part of the national airspace as states cannot adequately perform air navigation serv-ices therein.Evidently, the air law conventions do not clarify the legal status of near space. The

situation does not get any clearer when international space law is considered. First,space treaties deal with activities occurring in space properly considered; therefore, theirscope goes beyond the area usually referred to as near space.45 Second, internationalspace law does not set the physical lower limit of outer space, thus failing to shed lighton where exactly airspace ends and outer space begins. Since the early days of spaceactivities, states have failed to agree on a criterion to separate airspace and outer space,as well as on the practical need to do so.46 In the preceding sections, we have referredto the general practice of viewing the 100-km mark as the lower border of outer space;such an approach, however, is not universally accepted. This uncertainty also affects theproposal in this article to consider the altitude of 100 km above sea level as the upwardlimit of near space; some experts may reject this approach and deem near space to endat lower or higher altitudes.Regardless of this debate, it is evident that neither international air law nor space law

clarifies the legal nature of near space. An alternative approach might be to shift thefocus from the international to the national level and to consider national laws govern-ing activities in near space. The existence of similar laws could indeed provide elements

OCEAN DEVELOPMENT & INTERNATIONAL LAW 5

to support the view that near space is part of national airspace. Regrettably, the analysisof national laws does not provide a uniform or satisfactory picture. Only one state, NewZealand, has passed legislation specifically regulating near-space activities. Other stateshave only legislated for operations occurring below the 20-km altitude mark and haveleft the question of the upward delimitation of their national airspace unanswered.New Zealand enacted its Outer Space and High-Altitude Activities Act on December

21, 2017.47 The purpose of the act is twofold: (1) to regulate space activities as well ashigh-altitude activities; and (2) to facilitate the development of a space industry.48 Thedrafting of the act was prompted by the promising prospects of using portions of thelargely uninhabited New Zealand territory to test and launch rockets and high-alti-tude vehicles.Despite its stated goals, the act falls short of providing a clear regulation of high-alti-

tude activities. It defines “high altitude” as either above flight level 600 (FL 600), around18 km (59,005 feet), or above the uppermost limit of controlled airspace, usually at2.9 km (9,500 feet).49 Thus, the act does not set the upper limit of the areas designatedas “high altitude” and since “outer space” is also not defined in the act, it creates uncer-tainty as to the point at which New Zealand’s airspace vertically ends and outer spacebegins. This ambiguity is not resolved with the definition of “high-altitude payload,”which is simply identified as “an object that is carried or placed, or is intended to becarried or placed, at high altitude.” The act states that a person “must not launch ahigh-altitude vehicle from New Zealand … unless the person has a high-altitude licensefor the launch.”50 A launch license is also required to launch objects into outer space.51

However, in the absence of any determination as to where outer space begins or the“high-altitude” area ends, one is still left in the dark as to which of the two licensesshould be obtained in any given case. Importantly, a high-altitude license is linked tothe use of a “high-altitude vehicle,” which is defined as “an aircraft or any other vehiclethat travels, is intended to travel, or is capable of travelling to high altitude.”52 That def-inition, however, still does not clarify at what point an altitude would be so high as toconstitute outer space and thus deprive a vehicle of the label “high-altitude vehicle.”Apart from New Zealand, other states have generally not legislated near-space activ-

ities and have focused their regulatory attention on the implementation of air navigationservices above their territory. As mentioned, these services are provided only up to theso called flight level 600 (FL 600). Therefore, as the largest majority of states have notenacted regulations applicable beyond FL 600, one can make the argument that the alti-tude around 18 km constitutes the upper limit of national airspace. Under this con-struct, anything located above that point, including near space, would consequently lieoutside the state’s sovereignty. This argument is reinforced somewhat by the fact thatdomestic legislations do not typically set the upper limit of national airspace. However,there are also states that, while not having legislated beyond FL 600, have kept thisoption open. For example, in the United States, the Federal Aviation Administration(FAA) is in charge of ensuring the safety of daily flight operations by maintaining andoperating the National Airspace System. According to existing FAA manuals and regu-lations, the FAA’s authority extends up to FL 600; nevertheless, this does not mean thatFAA authority ends at FL 600. Federal Aviation Regulation §71.71, “Class E airspace,”describes what FAA authority exists above FL 600 by defining Class E airspace as: “The

6 H. LIU AND F. TRONCHETTI

airspace of the United States, including that airspace overlying the waters within 12nautical miles of the coast of the 48 contiguous states and Alaska, extending upwardfrom 14,500 feet MSL up to, but not including 18,000 feet MSL, and the airspace aboveFL600.” Furthermore, 49U.S. Code § 40103 provides that “The Administrator of theFederal Aviation Administration shall develop plans and policy for the use of the navig-able airspace and assign by regulation or order the use of the airspace necessary toensure the safety of aircraft and the efficient use of airspace.”53

Thus, the FAA has the authority to regulate air traffic over the United States from justabove the surface to a point where “the atmosphere becomes too thin to support aero-nautical flight.”54 In short, the United States considers its national airspace to extendbeyond FL 600, even though U.S. legislation does not set a precise vertical limit to it.The uncertainty surrounding the legal status of near space is reinforced by the pecu-

liar nature of near-space vehicles that cannot be assimilated to either aircraft or space-craft. The Chicago Convention defines an aircraft as “Any machine that can derivesupport in the atmosphere from the reactions of the air other than the reactions of theair against the Earth’s surface.”55 Near-space vehicles are based on flight theories differ-ent from pure aerodynamics. Thus, even when they are capable of certain flying maneu-vers, their maneuverability and performance cannot be assimilated to that of anaircraft.56 A space object is specifically designed to be launched and operated in outerspace. Near-space vehicles neither are intended to be launched in outer space nor havethe capability to operate therein. Indeed, they are primarily intended to be stationary ata certain altitude that is well below the lowest limit of outer space.57

In summary, this section has demonstrated the controversial legal status of nearspace. On one hand, it can be argued that near space is part of a state’s national air-space. Indeed, an expansive reading of Article 1 of the Chicago Convention seems tosupport the view that national airspace extends up to the yet-unknown limit whereouter space begins. In this respect, there is nothing in international law that preventsstates from enacting legislation applicable to the near space above their territory. Asdescribed, one state has already done so, while other countries have left the possibilityof regulating air navigation services above FL 600 open. On the other hand, one canalso suggest that near space lies outside national airspace. This idea is rooted in two ele-ments: first, the particular physical characteristics of near space that distinguish it fromthe lower portions of airspace; and second, the technical difficulties attendant with per-forming air navigation services above FL 600. Essentially, these two elements challengea state’s ability to enforce its jurisdictional power above a certain altitude.Based on the preceding analysis and the prevailing uncertainty, the proposal to confer

a special legal status upon near space and to establish specific rules to govern activitiestherein seems justified. Such an approach appears to be further validated by the peculiarnature of near-space vehicles, as they are a hybrid between aircraft and space objects.

The Exclusive Economic Zone

Definition and Historical Background

The exclusive utilization space (EUS) proposal has been inspired by the legal regimeapplicable to the exclusive economic zone (EEZ).58 Even though there are evident

OCEAN DEVELOPMENT & INTERNATIONAL LAW 7

differences between near space and the EEZ, analysis reveals that there are also histor-ical, economic, legal, and technological similarities. Most importantly for the purpose ofthis article, there are several EEZ rules that, if adequately modified, may facilitate theorderly management of near space activities and help achieve a balance between theinterests of all the entities involved in its use.Part V of the 1982 Law of the Sea Convention (LOSC) defines the EEZ as “an area

beyond and adjacent to the territorial sea, subject to the specific legal regime establishedin this Part, under which the rights and jurisdiction59 of the coastal State and the rightsand freedoms of other States are governed by the relevant provisions of theConvention.”60 A coastal state enjoys sovereign rights to manage and exploit the livingand nonliving resources located within its EEZ. These rights are, however, not exclusivein the sense that other states also benefit from certain limited rights and freedoms.61

Therefore, the term “exclusive” in the expression “exclusive economic zone” should notbe interpreted literally.The EEZ occupies a special place within the international law of the sea because it

combines characteristics of the legal regimes applicable to territorial waters and thehigh seas without being assimilated to either. For this reason, scholars view the EEZ asa sui generis zone.62

The concept of the EEZ was formally codified in Part V of the 1982 Law of the SeaConvention, even though many of its elements had already emerged in state practiceprior to that moment. The EEZ historically originated from the efforts of coastal statesto extend their sovereignty and jurisdictional rights beyond the 12 nautical miles (nm)limit of their territorial waters.63 Milestones in this process were the 1945 PresidentTruman Proclamations, in particular the Proclamation on Coastal Fisheries in CertainAreas of the High Seas.64 This proclamation declared the need for conservation zonesin those areas of the high seas contiguous to the coast of the United States where fish-ing activities had been, or could be, developed and maintained on a large scale andaffirmed that fishing activities within such zones would be subject to American regula-tion and control. Another proclamation, namely, the Proclamation in respect of theContinental Shelf, declared that the resources of the subsoil and the seabed of the con-tinental shelf beneath the high seas but contiguous to the coast of the United Statesbelonged to the United States and was subject to its jurisdiction and control.65

The U.S. example was soon followed by other countries that made similar claimsover the resources located on the continental shelf adjacent to their coasts and declaredtheir intention to establish zones of fisheries protection.66 In subsequent decades, a sig-nificant number of states also expanded the breadth of their territorial sea or set upmaritime areas in which they claimed exclusive jurisdiction on fishing and the exploit-ation of living resources up to 200 nm. It is against this backdrop of significant statepractice that the Third United Nations Law of the Sea Conference was convened in1973 and ended in 1982 with the adoption of Part V of the Law of the Sea Convention.

The Main Elements of the EEZ

Articles 55 to 75 of Part V of the Law of the Sea Convention outline the legal regime ofthe EEZ. Coastal states must claim an EEZ that can extend up to 200 nautical miles

8 H. LIU AND F. TRONCHETTI

from the baseline from which the breadth of the territorial sea is measured.67 Morethan 130 states have claimed an EEZ and many have passed legislation applicable toit.68 Importantly, the EEZ is not part of the territory of the coastal state that hasclaimed it, even though such a state enjoys extensive rights to use and manage it.Part V draws a distinction between two categories of subjects: coastal states and other

states.69 Coastal states enjoy two types of rights: (1) sovereign rights and (2) jurisdic-tional rights. Sovereign rights apply to both living and nonliving resources. As far as liv-ing resources are concerned, coastal states have the right to explore, exploit, conserve,and manage those located in the water column, seabed, and subsoil of their EEZ.70

Essentially, this means that coastal states are conferred nearly exclusive sovereign rightsto undertake and regulate71 fishing in their EEZ.72 However, coastal states are chargedwith the obligation of preserving fisheries and promoting their optimal utilization,73

and to this end are given the power to set allowable catches, as well as the right toenforce their laws and regulations.74

In principle, if the coastal state does not have the capacity to harvest the entire allow-able catch, it is obliged to negotiate agreements allowing other states to have access tothe surplus; in doing so, it must give special consideration to landlocked, geographicallydisadvantaged, and developing states.75 In practice, this provision has proven largelyineffectual as, except for a few marginal cases, no such agreements have been con-cluded.76 Foreign states have limited capability to pressure a coastal state into sharingits harvesting rights, as the determination of the allowable catch and national harvestingcapability and the allocation of any surplus fall outside the compulsory dispute settle-ment system set out in Part XV of the Law of the Sea Convention.77

In relation to nonliving resources, such as hydrocarbons and minerals, coastal statesenjoy unrestricted rights of exploration and exploitation, without any specific obligationof conservation or judicious use.78 These rights are exclusive in the sense that coastalstates have no requirement to share access to those resources. Another nonlivingresource mentioned in Article 56 is “energy from the water, currents and winds.” Statesmay rely on this provision to grant licenses in their EEZ for renewable energy facilitiessuch as offshore power generators and wind farms, always taking into account the rightsof other states and the need for marine environmental protection.Under Article 56 of the Law of the Sea Convention, coastal states are also conferred

three kinds of jurisdictional rights concerning (a) the establishment and use of artificialislands, installations, and structures; (b) marine scientific research; and (c) the protec-tion and preservation of the marine environment. The first right is particularly relevantfor our analysis as it entails the coastal state’s exclusive jurisdiction to construct andoperate artificial islands, installations, and structures for economic purposes.79 Duenotice must be given when constructing artificial islands or installations and the coastalstate may, where necessary, establish safety zones around them.80 Furthermore, in rela-tion to such islands and installations, coastal states have exclusive jurisdiction to enactcustom, fiscal, health, safety, and immigration laws and regulations.81

With respect to the rights and duties of other states, Article 58 of the Law of the SeaConvention incorporates into the EEZ regime elements of the high seas regime, namely,the freedom of navigation and freedom of overflight. This means that the navigationaland overflight rights accorded to states other than the coastal state within an EEZ

OCEAN DEVELOPMENT & INTERNATIONAL LAW 9

somewhat resemble those enjoyed on the high seas.82 However, these rights of naviga-tion and overflight are less extensive than those exercisable on the high seas.83 Indeed,within the EEZ, other states must pay due regard to the rights of the coastal state andmust comply with the laws and regulations it has adopted pursuant to the Law of theSea Convention.84 Accordingly, a coastal state is entitled to take measures to ensurecompliance by foreign vessels of such laws. However, the limits of such enforcementmeasures remain somewhat blurred, creating the risk of undue interference with otherstates’ rights.

Relevance of the EEZ for the Management and Utilization of Near Space

Undoubtedly, there are differences between the EEZ and near space, most notably thefact that the former deals with the management and utilization of living and nonlivingresources while the latter does not contain resources per se (unless we consider the airas a resource). It is also true that while in the period from the late 1940s to the early1970s several states made sovereignty claims over the areas adjacent to their territorialwaters, only one state has passed legislation specifically regulating near-space activities.However, it is also undeniable that there are similarities between the two. First, near

space and the sea adjacent to the territorial sea, as regulated prior to the entry intoforce of the 1958 Geneva Conventions, shared two characteristics: (a) They arguably laybeyond national boundaries, and (b) they were not adequately regulated at the inter-national level. Second, the utilization of near space as well as of the EEZ faces techno-logical and economic challenges. Long-term and sustainable operations in bothenvironments require technological advancements and innovation; this element compli-cates business plans and generates unpredictability as to the profitability of an envi-sioned activity. Third, the use of near space and the use of the EEZ raise safety andsecurity concerns, particularly when foreign entities are involved. A system to manageand supervise operations is thus needed to ensure that they do not interfere with preex-isting services and undermine national security interests. Fourth, due to their particularphysical characteristics, both environments tend toward the internationalization of someof their activities and services. Indeed, several countries may not possess the necessarytechnology to fully exploit the potential of their EEZ or sufficient capabilities to meetdomestic demand; this may lead a state to the decision to open up the zone to foreignentities. One should also keep in mind that the international law of the sea has historic-ally influenced the formulation of other international legal regimes. For instance, thefundamental principles of outer space law were inspired by the rules applicable to thehigh seas.Thus, taking into account that the international community has managed to agree on

rules regulating the utilization of the EEZ, it seems rather intuitive to view them as avaluable precedent for the formulation of a framework for the management and utiliza-tion of near space. In that regard, the following elements of the EEZ regime are particu-larly relevant to achieving that goal: (a) the utilization of the EEZ area for exclusivelyeconomic purposes; (b) the promotion of the optimal use of resources; (c) the sovereignright of the coastal state to manage and use its EEZ on a priority basis combined withthe limited rights of other countries to participate in activities therein; (d) the right of

10 H. LIU AND F. TRONCHETTI

the coastal state to pass and enforce laws in relation to activities occurring within itsEEZ and the right to enforce them; and (e) the need to ensure safety, security, andorder within an EEZ. As explained in the following section, these elements constitutethe core of the exclusive utilization space (EUS) proposal.

The Exclusive Utilization Space

Background to the Exclusive Utilization Space Proposal

As described in the previous sections, technological advancements are graduallymaking near-space activities a reality; several companies across the world are developingdifferent classes of near-space vehicles capable of performing communication,intercnet, sensing, and other services. These companies are planning to deploy theirvehicles in near space both above their national territories and above the territory offoreign countries.Importantly, while the technology to perform near space activities is quickly progress-

ing, the same cannot be said of the legal regime applicable to such activities, whichremains highly uncertain. This uncertainty derives from the absence of internationaltreaties clearly defining the legal status of the near space and the rules applicabletherein. As a consequence, answers to several key questions related to its use remain indoubt. For example, what are the conditions to access and operate in near space? Whatkind of services may be provided? How long may a foreign platform station over a for-eign territory? What kind of measures may an underlying state take to protect itsnational security interests?The uncertainty surrounding these questions has resulted in an unpredictable legal

framework that negatively affects near-space plans and discourages potential investors.Its detrimental impact is particularly evident in relation to near-space activities havingan international nature; indeed, the placement of vehicles in near space above foreignterritories raises significantly higher safety and security concerns if compared with theplacement of the same vehicles above national territory. These concerns may eventuallylead to barriers to enter and conduct operations in a foreign near space.Overall, the present situation does not seem to offer a regulatory environment cap-

able of adequately promoting innovation and, at the same time, enabling the preserva-tion of national interests, wide accessibility of services, and the profitability of activities.Distinct options to ameliorate the situation ought therefore to be considered. Oneoption would be to leave the matter entirely in states’ hands without addressing the cur-rent ambiguous status of near space. This would mean that each state would be entitledto individually regulate the use of near space above its territory, including the activitiesundertaken by foreign entities, without setting up an internationally agreed regime.While it is reasonable to expect that certain aspects related to the use of near spacecould, and probably should, be regulated domestically, this approach runs the risk ofcreating a fragmented legal framework for near-space activities with the following nega-tive consequences: (a) an unpredictable regulatory environment leading to divergingconditions of operation applicable to the same activity in different countries (e.g., safetyand security requirements); (b) market access restrictions; and (c) obstacles in

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distributing and accessing near-space services. In the long term, this is a situation thathas the potential to discourage investors and innovation in the near-space sector and tobe detrimental to both domestic and international actors. It should be remembered thatcertain countries do not possess the technology to undertake near-space activities; thus,if foreign entities are not allowed to operate in the near space above such territories,those countries might not be able to benefit from near-space services.An alternative option would be to address the question of the legal regime of near

space at the international level, rather than leaving it exclusively in states’ hands.Ideally, this would result in the recognition of a new legal status for near space, that ofthe exclusive utilization space (EUS), and in the setting up of basic rules governingactivities therein. Under this construct, near space would lie outside national airspaceand would thus, at least in principle, be accessible to foreign entities. Nevertheless, thestate above whose territory an EUS was established would enjoy a priority right of util-ization and the authority to manage safety/security matters. This priority afforded theunderlying state is inspired by the precedent of the EEZ. As explained earlier in this art-icle, while the EEZ is not part of the national territory of a coastal state, it does enjoysovereign rights of utilization and overall management within the zone. Third countries,for their part, have distinct rights in other countries’ EEZ, including the right of over-flight and access to the surplus of resources. Similarly, under the exclusive utilizationspace proposal, the ultimate decision on whether to establish an EUS would belong tothe underlying state; if it decided to do so, and while the EUS would not be consideredits sovereign territory, the underlying state would enjoy special rights to administer,supervise, and manage the area, as well as the right to use it on a priority basis.However, upon meeting certain conditions, nonnationals would be entitled to accessand carry out activities in a foreign near space.Interestingly, the suggestion to attribute a distinct legal status to near space is not

unprecedented in international law. For instance, one scholar proposed that the areaextending from 21 to 100 km be considered as the “protozone,” with the ultimate goalof better regulating safety and security matters.85 Another proposal suggested that thelegal regime of the high seas should be applied to near space so as to enable freedom ofnavigation by all.86 The difference between these proposals and the EUS is threefold: (1)The EUS proposal focuses on the economic aspects of the utilization of near space; (2)it uses the exclusive economic zone as a precedent; and (3) it attempts to find a balancebetween the interests of the underlying state and foreign entities as far as the use of spe-cific areas of near space are concerned. It is the opinion of the present authors thatendorsing the EUS idea would (a) enable the broadest utilization of near space; (b) clar-ify the rights and duties of the actors involved in its use; (c) favor its predictable andorderly management; (d) stimulate industry growth; and (e) favor accessibility to near-space services.

Main Elements of the Exclusive Utilization Space Proposal

This section delineates the main elements of the exclusive utilization space proposal. Itspurpose is to introduce the rights and duties of the parties involved in the use of near

12 H. LIU AND F. TRONCHETTI

space, as well as the basic conditions for the provision of services. A more detailed ana-lysis of these elements is provided in the next section.The main principles of the EUS proposal are the following:

1. An exclusive utilization space could be claimed by a state above its land territory andterritorial sea in the area between 18 to 100 km (59,005 to 328,083 feet) above sea level.

2. The exclusive utilization space would be based on purely economic motives.3. The exclusive utilization space would not constitute part of the territory of the state

above which it is established.4. The establishment of an exclusive utilization space would not undermine the sovereignty

of the underlying state in its national airspace.5. The underlying state would retain a priority right to use and administer the exclusive

utilization space established above its territory.6. The underlying state would be entitled to regulate and enforce safety and security mat-

ters within the exclusive utilization space established above its land territory and terri-torial sea.

7. The conditions for deployment and operation of near space vehicles within an exclusiveutilization space would be agreed upon between the underlying state and the operatorprior to the commencement of operation.

8. The underlying state would have the right to deny the deployment of foreign high-alti-tude vehicles in its EUS based on any perceived threat to its national security andsafety interests.

9. Third countries/foreign operators would be entitled to deploy their near space vehiclesin a foreign EUS subject to prior notification and approval by the underlying state.

10. Third countries/foreign operators would enjoy the right of overflight through a foreignEUS upon prior notification.

11. The operators of foreign high-altitude vehicles would be obliged to apply for a licensefrom the underlying state to provide services in its EUS.

Elaborating Upon the Exclusive Utilization Space Proposal

1. An exclusive utilization space could be claimed by a state above its land territory and terri-torial sea in the area between 18 to 100 km (59,005 to 328,083 feet) above sea level.

Ideally, an exclusive utilization space should be established at around the altitudebetween 18 to 100 km (59,005 to 328,083 feet) above a state’s land territory and territor-ial sea. As described in the first section of this article, that area represents a sort of buf-fer zone between airspace and outer space. Commercial passenger aircrafts fly far belowthe 18 km mark (59,005 feet) and air navigation services cannot be adequately providedabove that level. As for the 100 km (328,083 feet) limit, it separates near space fromouter space because above that altitude, aerodynamic operations are no longer possibleand space activities officially begin (even though satellites must be placed at a minimumaltitude of 160 km or 524,934 feet). Indeed, certain countries have officially designated100 km as the point at which outer-space activities begin. While the area comprisedbetween the altitudes of 20 and 100 km has thus far remained largely underutilized, sev-eral operators have ambitious plans to deploy their high-altitude platforms in that area.It therefore seems reasonable to argue that this area should be dedicated to near-spaceuses through the establishment of exclusive utilization spaces.The establishment of an exclusive utilization space would be the result of an inde-

pendent decision made by the underlying state. Such a decision might be prompted by

OCEAN DEVELOPMENT & INTERNATIONAL LAW 13

a willingness to provide commercial opportunities in near space above the state’s terri-tory (and territorial sea) or because of existing agreements with third countries (andtheir operators) willing to operate therein. Regardless of the motives behind the state’sdecision, the basic idea is that no EUS could be declared without the explicit consent ofthe underlying state. This principle derives from two considerations: (1) the need toprotect the national interests of the underlying state; and (2) the sovereign and equalrights of states under international law. First, even if we assume that national airspaceonly extends up to an altitude of 20 km, it is unquestionable that the operation ofvehicles even at higher altitudes, especially when operated by foreign entities, posespotential risks to the fundamental sovereign interests and rights of the underlying state.Therefore, it seems essential to confer upon that state the exclusive right to authorizeoperations in near space above its territory through the setting up of an EUS. Second,two of the fundamental rights of states under international law are sovereignty87 andequality.88 Hence, no state can be forced to act in a manner detrimental to its sovereigninterests or in a way that puts it in a disadvantaged position as compared to othercountries. Based on this assumption, no state could be “obliged” to establish an EUSabove its territory if it did not choose to do so independently. This reasoning wouldhold even if the state had been directly involved in the elaboration of the EUS rules atinternational level.

2. The exclusive utilization space would be based on purely economic motives.

The goal of the exclusive utilization space proposal is the promotion of the use ofnear space. Until now, no significant operations have been carried out in near space,largely due to its uncertain legal status, technological barriers, and lack of economicincentives. The EUS idea is intended to invert this trend by putting in place a regulatoryframework that, through the definition of operational conditions and the creation offavorable business perspectives, may contribute to the broadest utilization of near space.Importantly, the focus of the proposal is to enable the economic use of near space, thatis, a use aimed at providing commercial (paying) services to customers. Other kinds ofactivities, such as scientific or military, fall outside the scope of the proposal.

3. The exclusive utilization space would not constitute part of the territory of the State abovewhich it is established.

Similar to the precedent of the exclusive economic zone, where the EEZ does notbelong to the coastal State that has established it, the exclusive utilization space wouldnot constitute part of the territory of the underlying state. Based on the technical con-siderations discussed in point 1 and described earlier, the present article suggests thatnational airspace should be defined as extending from ground level up to an altitude of18 km. The portion of airspace ranging from 18 to 100 km (59,005 to 328,083 feet)would not be considered a part of a state’s territory, though extensive rights of manage-ment and utilization would be conferred upon it. This proposal is meant to overcomethe barrier that sovereignty would likely pose to the utilization of near space by foreignentities. Indeed, such entities might be hesitant to pursue their near space plans in lightof the restrictions that sovereignty would inevitably place on access, operations, and the

14 H. LIU AND F. TRONCHETTI

provision of services. It is true that even under the exclusive utilization space proposal,the underlying state would have the right to impose and enforce conditions on foreignoperators; however, in the absence of sovereignty related considerations, it seems morelikely that an equilibrium between the preservation of national interests and the (for-eign) utilization of the near space could be achieved.

4. The establishment of an exclusive utilization space would not undermine the sovereignty ofthe underlying state in its national airspace.

The exclusive utilization proposal is not intended to negatively affect the sovereigntyand the rights that a state enjoys in its national airspace. Indeed, even after establishingan exclusive utilization space above its territory, the underlying state would maintain itsauthority to legislate over, administer, and control the activities taking place in its air-space up to an altitude of 18 km, as that airspace would remain a part of its nationalterritory. Any near-space operation that interfered with this fundamental principle orthat raised safety/security concerns could be suspended, modified, or terminated.

5. The underlying state would retain a priority right to use and administer the exclusive util-ization space established above its territory.

Following the precedent of the exclusive economic zone, the underlying state wouldenjoy the sovereign right to use and manage the exclusive utilization space establishedabove its land territory and territorial sea on a priority basis. This right might becomeexclusive if the underlying state does not allow foreign entities to operate within itsEUS, a decision that might derive from the failure of those entities to demonstrate theirability and willingness to comply with safety and security requirements. However, if theunderlying state decided to allow other states or foreign entities to operate in the nearspace above its land territory and territorial sea, it would retain the right to administerand supervise their activities and to enforce compliance with the contractual conditionsagreed upon prior to the commencement of operations.

6. The underlying state would be entitled to regulate and enforce safety and security matterswithin the exclusive utilization space established above its land territory and territorial sea

Even though the exclusive utilization space proposal is focused on the economicaspects of the use of near space, the placement and operation of high-altitude vehicles,particularly when controlled by foreign entities, unquestionably raise security andsafety concerns.From a security perspective, the essentially stationary nature of these vehicles is a

troublesome element because, in principle, they might be used to spy over sensitivefacilities and areas, such as governmental buildings and military bases. High-altitudevehicles might also be used for communication purposes to coordinate and supportoperations detrimental to the sovereignty of the underlying state. There are also con-cerns related to the preservation of the privacy of individuals living in that state.From the point of view of safety, the priority must be to ensure that near-space activ-

ities do not interfere with preexisting operations and services. First, the deployment and

OCEAN DEVELOPMENT & INTERNATIONAL LAW 15

recovery of high-altitude vehicles would have to be organized in a manner that posedno risk to air traffic or to the eventual launch of a space object. Second, as high-altitudevehicles are mostly meant to provide communication and Internet services, it will becrucial to ensure that those vehicles do not interfere with existing services.Based on these considerations, the underlying state would have the right to set the

safety and security requirements that an operator would have to comply with in order tobe allowed to operate in near space above land territory or territorial sea and to enforcethem upon domestic and foreign entities. Failure to comply with such requirements couldresult in the temporary suspension, revision, or termination of the activities.

7. The conditions for deployment and operation of near space vehicles within an exclusive util-ization space should be agreed upon between the underlying state and the operator prior tothe commencement of operations.

Any entity willing to provide services from an exclusive utilization space would haveto abide by the underlying state’s conditions for the deployment and operation of near-space vehicles prior to the beginning of activities. Indeed, the underlying state would beentitled to assess whether an intended project threatened its national security and safetyand whether the proposed services were in its national interest and that of its citizens.In order to do so, the operator would submit a plan to the underlying state detailingthe nature, duration, and purpose of its planned activities. Only after reviewing theoperator’s ability to comply with safety and security requirements, its past performances,and the financial and technical soundness of the project would the underlying stateauthorize the commencement of operations. Such an authorization might take the formof a license; however, it would be entirely up to each state to determine how to struc-ture the authorization process. The key point is that high-altitude vehicles, especiallywhen owned by foreign entities, could not be deployed in an exclusive utilization spacewithout prior authorization and coordination with the underlying state.

8. The underlying state would have the right to deny the deployment of foreign high-altitudevehicles in its EUS based on any perceived threat to its national security andsafety interests.

In relation to near-space services undertaken by foreign entities, the preservation ofnational security interests and the avoidance of harmful interferences or other safetyhazards would be of paramount importance. Indeed, on the basis of safety and securityconsiderations, a foreign entity could be denied permission to deploy high-altitudevehicles in an exclusive utilization space. The underlying state might take this decisionif it considered that the entity did not offer sufficient guarantees of its ability and will-ingness to comply with its security and safety requirements. However, to help preservethe equilibrium between the parties, the underlying state would be obliged to communi-cate the reasons for its refusal and afford the foreign entity an opportunity to addressits concerns.

9. Third countries/foreign operators would be entitled to deploy their near space vehicles in aforeign exclusive utilization space subject to prior notification and approval by the underly-ing state.

16 H. LIU AND F. TRONCHETTI

Any foreign entity willing to provide services from an exclusive utilization spacelocated above another country’s territory would have to notify its intention of doing soto the underlying state and submit an operational plan. Any action contrary to thisprinciple, including the unannounced deployment of near-space vehicles, would consti-tute a breach of the underlying state’s rights and a threat to its national security inter-ests. In this event, the underlying state would have the right to take the necessarymeasures to respond to this unwelcome event. However, if the foreign entity/state actedaccording to the principles just described and duly submitted an operational plan, itwould be entitled to deploy its vehicles and provide the proposed services, as long as nofinancial issues or safety and security concerns motivated a refusal. Such an advanta-geous position for foreign entities can be justified on several grounds. First, the exclu-sive utilization space proposal aims to promote the efficient use of near space,particularly in countries that do not have the capability to do so themselves.Consequently, the advantage conferred to foreign entities is meant to encourage themto enter the near space business and to offer services to any interested customer world-wide. Second, it is likely that in the period preceding the start of operations, the under-lying state and the foreign entity will have discussed and determined the terms for theprovision of near-space services to the former. On the basis of such discussions, it islikely that the foreign entity would have invested technological and financial resourcesto develop the necessary capabilities to perform those services. Thus, once those capabil-ities were mature and if the entity submitted an operational plan and no serious safetyor security concerns arose, there seems to be no legitimate reason why that entity wouldbe refused the right to deploy its vehicles in the foreign exclusive utilization space.Importantly, even in this scenario, the foreign entity would always have to comply withthe operational conditions and licensing requirements set out by the underlying state.Nevertheless, the foreign nature of the entity could not in itself constitute a sufficientreason to deny that entity the opportunity to undertake activities in a foreign nearspace. Third, the establishment of an exclusive utilization space would clearly signal theunderlying state’s willingness to promote the use of near space above its territory andto attract all interested entities, including foreign ones.The possibility of deploying high-altitude platforms assumes particular importance in

relation to projects aimed at building communication networks across several countries.In this context, an entity from State A might be willing to place broadband transceiversin near space above State B to provide services to States C and D. The deployment ofthis kind of transceivers raises limited security and safety concerns from the perspectiveof State B, the underlying state. Therefore, there would appear to be limited grounds forthat state to oppose these types of projects, especially if the entity notified its plan anddemonstrated technical reliability.

10. Third countries/foreign operators would enjoy the right of overflight through a foreignexclusive utilization space upon prior notification.

Despite their mostly stationary nature, certain high-altitude vehicles have a certaindegree of maneuverability. Thus, it would be possible for a foreign entity to transit itshigh-altitude vehicles through a foreign exclusive utilization space upon giving priornotification to the underlying state. This represents a significant departure from Article

OCEAN DEVELOPMENT & INTERNATIONAL LAW 17

87 of the Law of the Sea Convention, which does not set any requirement for a state tonotify its intention prior to undertaking an overflight of a foreign EEZ. The reason forsuch a condition is twofold. First, the unannounced crossing of an EUS by a foreignhigh-altitutde vehicle might be perceived by the underlying state as an unacceptablethreat to its national security. Such a state might, eventually, decide to suspend/termin-ate the foreign activity and, in extreme circumstances, even to deny entry to the vehicle.Second, internationally recognized aviation rules require an aircraft intending to enter aforeign airspace to notify the competent authorities and to wait for approval before pro-ceeding with the maneuver. Thus, even if the EUS does not constitute part of the terri-tory of the underlying state, it seems reasonable to expect that the owner of a nearspace vehicle would notify its intention to access a foreign managed EUS to the appro-priate authorities prior to proceeding with such a manoeuvre.

11. The operators of foreign high-altitude vehicles would be obliged to apply for a license fromthe underlying State to provide services in its EUS.

In the context of near-space activities, it is important to distinguish between twotypes of licenses: (a) the license to launch and operate a high-altitude vehicle, and (b)the license to provide near space services. The first type of license would be issued bythe state in which the entity was registered and operated, which we label state A. Thestate responsible for issuing the second type of license would depend upon where theservices were to be provided. If the services were to be offered within State A, then thatstate would be responsible for issuing the license. Alternatively, if the entity intended toprovide services to a third country, for instance, State B, it would be the responsibilityof that state to grant a service license. Obviously, State B would issue such a license if itbelieved that the proposed activity would not be detrimental to its national securityinterests. The license would then include a series of requirements to prevent the entityfrom causing harmful interference with preexisting services and would define the condi-tions governing operations. Furthermore, the licensing authority would be entitled todemand an annual fee from the licensee. This kind of licensing system is not uncom-mon. For example, in the context of the licensing of a mega-constellation of satellites,the Federal Communications Commission (FCC) recently granted OneWeb access tothe U.S. communication market.89 OneWeb is a United Kingdom-based company, sothe launch of its satellites had to be authorized by the United Kingdom.90 However, inorder to provide broadband services in the United States using satellite technologies, itrequired a license from the competent U.S. authority, in this case the FCC.

Conclusion

Near-space activities represent the new frontier of aerospace operations. Recent studieshave indicated that the provision of communication, Internet, and other services fromnear space is potentially highly profitable. These promising prospects have attracted anumber of nongovernmental entities to enter near-space business with the goal of offer-ing services on a domestic and international basis.Despite these positive developments, the uncertain legal status of near space still

poses challenges to the effective commencement of large-scale near-space activities. This

18 H. LIU AND F. TRONCHETTI

uncertainty is particularly detrimental to international activities and might lead to bur-densome restrictions or even the outright denial of such activities. This ambiguity maynot only lead some entities to abandon their near space plans but also harm customerswho may be deprived of services that are otherwise unavailable.In order to overcome these obstacles and promote the broadest utilization of near

space as well as the greatest accessibility of services, this article has suggested a newclassification of near space above the territory of a state (land and territorial sea) as theexclusive utilization space. At its core, the EUS proposal is an attempt to achieve a bal-ance between the rights of the state above which territory an EUS is established, theunderlying state, and the interests of the entities willing to provide near space services.On the one hand, while the EUS would not constitute a part of the underlying state’sterritory, such a state would retain sovereign and priority rights of utilization and man-agement. On the other hand, domestic and foreign entities, upon meeting the underly-ing state’s safety and security requirements, would have the opportunity to deploy theirvehicles and carry out their intended activities within an exclusive utilization space. TheEUS proposal would not undermine the legal position of the underlying state. First,only that state could establish an EUS above its territory, and second, it would be enti-tled to set out conditions and requirements to be complied with by operators.The authors of the present article are aware of the controversial and still embryonic

nature of the EUS proposal. Undoubtedly, elements of the proposal need some refine-ment and a greater level of specificity in order to be applied in practice. However, theultimate goals of this article are to draw attention to the current uncertainty surround-ing the legal status of near space, to stimulate discussions about developing a regulatoryframework to govern activities therein, and to hopefully provide some ideas to serve asa foundation for such discussions. In this respect, a possible forum for discussion couldbe ICAO, which has already shown an interest in addressing and possibly regulatingaerospace matters, as demonstrated by the recent establishment of its SpaceLearning Group.This article concludes with the hope that the upcoming near-space era will bring ben-

efits not only to those states and entities directly engaged in its management and use,but also, and most importantly, to civilian users.

Notes

1. For a general review of these technologies see Flavio Araripe d’Oliveira, Francisco Lourencode Melo, and Tessaleno Campos Devezas, “High Altitudes Platforms: Present Situation andTechnology Trend,” Journal of Aerospace Technology and Management 8 (2016): 249;Alejandro Aragon Zavala, Luid Cuevas-Ruis, and Jos�e Delgado-Penin, High AltitudePlatform for Wireless Communication (Chichester: Wiley, 2008); Stylianos Karapantazis andFotininiovi Pavlidou, “Broadband Communication via High-Altitude Platforms: A Survey,Communications Surveys and Tutorials,” IEEE Communications Surveys and Tutorials 7,no.1 (2005): 2; Toshiaki Tsujii, Masatoshi Harigae, and Masashi Harada, “Navigation andPositioning System Using High Altitude Platforms Systems,” Journal of the Japan Society ofAeronautical and Space Sciences 52 (2004): 175; Emanuela Faletti, “Integrated Services fromHigh-Altitude Platforms: A Flexible Communication System,” IEEE CommunicationsMagazine 44 (2005): 85.

2. Araripe d’Oliveira, Lourenco de Melo, and Campos Devezas, supra note 1, at 251–56.

OCEAN DEVELOPMENT & INTERNATIONAL LAW 19

3. Examples of unsuccessful projects were SkyStation and Halo: the former aimed at placingsolar-powered high-altitude platforms at altitudes around 21 km to provide wirelesscommunication services, and the latter planned to deploy airplanes at similar altitudes tooffer broadband communications. For more information, see Aragon Zavala, Cuevas-Ruis,and Delgado-Penin, supra note 1, 20-25.

4. Ibid., 23; and Dean Reinhardt, “The Vertical Limit of Sovereignty,” Journal of Air Law andCommerce 72 (2007): 65, 94–100.

5. Tom Simonite, “Billions of People Could Get Online for the First Time Thanks ToHelium Balloons That Google Will Soon Send Over Many Places Cell Towers Don’t Reach,”www.technologyreview.com/s/534986/project-loon/; Will Oremus, “Not as Loony as ItSounds,” www.slate.com/articles/technology/future_tense/2014/12/project_loon_how_google_s_internet_balloons_are_actually_working.html (accessed March 22, 2018).

6. See x.company/loon. Significantly, in October 2017 the X company was able to provideimmediate Long Term Evolution (LTE) coverage to Puerto Rico in the aftermath ofHurricane Maria, www.engadget.com/2017/11/09/project-loon-delivers-internet-100-000-people-puerto-rico. Furthermore, in 2016, X concluded an agreement with Sri Lanka toprovide full Internet coverage using LTE.

7. For a description of the Facebook Internet Project see www.wired.com/2016/01/facebook-zuckerberg-internet-org.

8. For example, on November 21, 2014, Kuang-Chi signed a joint memorandum with AirwaysNew Zealand to enable the launch of a near-space commercial platform called Travelerfrom New Zealand territory. The Traveler was successfully launched on June 6, 2015. Formore details about the activities of Kuang-Chi see www.kuang-chi.com/en. For technicalinformation about the use of wireless sensor systems in near space see, e.g., Wen-Qin Wangand Dingde Jiang, “Integrated Wireless Sensor Systems Via Near Space and SatellitePlatforms: A Review,” IEEE Sensors Journal 14 (2014): 3903.

9. See Transparency Market Research, “High Altitude Platforms (Airships, Unmanned AerialVehicles (UAV) and Tethered Aerostat Systems), Market—Global Industry Analysis, Size,Share, Growth, Trends and Forecast 2015–2023,” (2017), www.transparencymarketresearch.com/high-altitude-platforms-technologies.html.

10. Ned Allen, “Our Strategic Space Shore: Opportunities in Near Space,” Aerospace America 31(2007): 45.

11. Paul Stephen Dempsey and Kevin O’Connor, “Air Traffic Congestion and InfrastructureDevelopment in the Pacific Asia Region,” in Asia Pacific Air Transport: Challenges andPolicy Reforms (Singapore: Institute of Southeast Asia Studies, 1997), 23–25; Paul Dempsey,Public International Air Law (Montreal: Centre for Research in Air and Space Law, 2008),164–171; Justine Barkowski, “Managing Air Traffic Congestion Through the NextGeneration Air Transportation System: Satellite Based Technology, Trajectories, andPrivatization?,” Pepperdine Law Review 37 (2010): 247.

12. National Space Policy of the United States of America, June 28, 2010, available at www.nasa.gov/sites/default/files/national_space_policy_6-28-10.pdf.

13. Araripe d’Oliveira et al., supra note 1, at 260.14. For more information on these technical challenges see ibid., at 258–260.15. See first section.16. Araripe d’Oliveira et al., supra note 1, at 261; David Grace and Mihael Mohorcic,

Broadband Communications via High-Altitude Platforms (Chichester: Wiley 2010).17. See Karapantazis and Pavlidou, supra note 2, at 5. One such near-space international

project is the Angel Technologies Corporation’s plan to provide high-speed Internet accessvia stratospheric HALO aircraft deployed at 51.000 feet, www.isoc.org/inet99/proceedings/4d/4d_3.htm. Companies like Airborne Wireless Network (AWN) are, for their part,proposing to operate a high-speed broadband airborne wireless network by linkingcommercial aircraft in flight. Essentially, AWN is planning to install its broadbandtransceivers on a critical mass of airborne aircraft and use these equipped aircraft as signalrepeaters capable of providing wireless signals all over the world. For more information, see

20 H. LIU AND F. TRONCHETTI

Woodrow Bellamy III, “This Company Plans to Turn Airplanes into CommunicationSatellites,” www.satellitetoday.com/telecom/2017/02/08/company-plans-turn-airplanes-communications-satellites, and the Airborne Wireless Network website at www.airbornewirelessnetwork.com/index.asp.

18. See Eric Cook, “Broad Area Wireless Networking via High Altitude Platforms,” unpublishedPhD dissertation, Naval Postgraduate School, 2013, available at calhoun.nps.edu/bitstream/handle/10945/34648/13Jun_Cook_Eric.pdf?sequence ¼ 1; Zhe Yang and Mohammed Abbas,“High Altitudes Platforms for Wireless Mobile Communication Applications,” in Mobileand Wireless Communication Physical Layer Development and Implementation, edited bySalma Ait Fares and Fumiyuki Adachi (Vukovar: IntechOpen, 2015), 47–56.

19. Indeed, several states, while not possessing near-space technology (and not intending todevelop it) are still interested in benefiting from near-space services and in allowing theirpopulation to access it. See Araripe d’Oliveira et al., supra note 1, at 252–258; and AragonZavala et al., supra note 1, at 51.

20. Paul G. Dembling and Daniel M. Arons, “The Evolution of the Outer Space Treaty,”Journal of Air Law and Commerce 33 (1967): 151.

21. On this point, see Ruth Stilwell, “The First 100KM, the Case for Integrated Space andAviation Policy and Governance,” in Space Safety is No Accident, edited by TommasoSgobba and Isabelle Rongier (Berlin: Springer, 2015), 561–570; Joseph Pelton, “A NewIntegrated Global Regulatory Regime for Air and Space: The Needs for Safety Standards forthe Protozone,” Paper presented at the 2nd Manfred Lachs International Conference onGlobal Space Governance, Montreal, May 2014, available in Ram Jakhu, Kuan-Wei Chen,and Yaw Nyampong, eds., Monograph Series III, Global Space Governance (Montreal:McGill University Centre for Research in Air and Space Law, 2015), 293; Matthew King,“Sovereignty’s Grey Area: The Delimitation of Air and Space in the Context of AerospaceVehicles and the Use of Force,” Journal of Air Law and Commerce 81 (2016): 377.

22. Francis Lyall and Paul Larsen, Space Law: A Treatise (Oxford: Routledge, 2009), 163;Jinyuan Su, “Near Space as a Sui Generis Zone: A Tri-Layer Approach of Delimitation,”Space Policy 29 (2013): 90; Joseph Pelton, “Urgent Security Concerns in the Protozone,”Paper presented at the 4th Manfred Lachs Conference, Montreal, May 2016 (on file withthe author); and King, supra note 21, at 403.

23. The Federal Aviation Administration (FAA) does not allow commercial aircraft to exceedthe altitude of 40,000 feet (MSL) unless the structure is certified to not have any type ofdecompression. See Federal Aviation Administration, Advisory Circular—AC No: 61-107B,Aircraft Operations at Altitudes Above 25,000 Feet Mean Sea Level or Mach NumbersGreater Than .75, March 29, 2013.

24. See King, supra note 21, at 407, 411; Rebecca Maksel, “Who Holds the Altitude Record foran Airplane?,” Air and Space Magazine (2009), www.airspacemag.com/need-to-know/who-holds-the-altitude-record-for-an-airplane-141522931.

25. For the purpose of air traffic control, domestic airspace is divided in differentareas: controlled, uncontrolled, special use, and other airspace. See Airspace Classificationat herschlogbook.sg?2012/08/airspace.html, as well as www.faa.gov/regulations_policies/handbooks_manuals/aviation/phak/media/17_phak_ch15.pdf. Generally, domesticregulations apply to a maximum altitude of flight level (FL) 600, approximately 60,000 feet(18,000 m). For more information, see Federal Aviation Authority (FAA), Appendix A,National Airspace System Overview, available at www.faa.gov/air_traffic/nas/nynjphl_redesign/documentation/feis/media/Appendix_A-National_Airspace_System_Overview.pdf.

26. In practice, Low Earth Orbit satellites (Low Earth Orbit consists of the orbits locatedbetween 150 to 2000 km or 6,561,679 feet of altitude) are normally placed at a minimumlevel of 160 km (524,934 feet) because below that altitude, satellites enter a state of orbitaldecay caused by atmospheric drag. Low Earth Orbit is an orbit around the earth with analtitude of 2000 km (524,934 feet).

27. Australia, Space Activities Act of 1998, as revised in 2001 and 2010, Part II—Definitions,“Space Object”: “A payload (if any) that the launch vehicle is to carry into or back from an

OCEAN DEVELOPMENT & INTERNATIONAL LAW 21

area beyond the distance of 100 km above mean sea level.” The text of the act is available atwww.industry.gov.au/regulation-and-standards/space-regulation.

28. Law of the Republic of Kazakhstan on Space Activities, January 6, 2012, Chapter I—Article1, Basic Definitions, “Outer Space”: “A space extending beyond the airspace at an altitudeof more than one hundred kilometers above the sea level.” The law is available at cis-legislation.com/document.fwx?rgn ¼ 49320.

29. Denmark, Law on Activities in Outer Space, May 3, 2016, Chapter II—Definitions, “OuterSpace”: “Outer space: The area located more than 100 kilometers above sea level.” The lawis available at ufm.dk/en/legislation/prevailing-laws-and-regulations/outer-space.

30. On the contrary, as described in the preceding, states seem to have a commonunderstanding of where the spatial limitations of near space lie.

31. Article 43, Convention on International Civil Aviation, adopted 7 December 1944, enteredinto force 4 April 1947, 15 U.N.T.S. 295 [hereinafter Chicago Convention].

32. For an overview of the 1944 Chicago Convention see Dempsey, supra note 10, at 41–65;Michael Milde, “The Chicago Convention—After Forty Years,” Annals of Air and SpaceLaw 9, (1984): 119; Ruwantissa Abeyratne, Convention on International Civil Aviation(New York: Springer, 2014).

33. This principle was first established in Article 1 of the 1919 International Convention on AirNavigation [hereinafter Paris Convention] that recognized that “every Power has completeand exclusive sovereignty over the airspace above its territory.” Convention on theRegulation of Aerial Navigation, adopted 13 October 1919, entered into force 11 July 1922,297 L.N.T.S. 173. For an overview of the period between the 1919 Paris Convention and the1944 Chicago Convention, see Malgorzata Polkowska, “The Development of Air Law—Fromthe Paris Conference of 1910 to the Chicago Convention of 1944,” Annals of Air and SpaceLaw 33 (2008): 59; and Pascal Dupont, “L’espace a�erien entre souverainet�e et libert�e au seuildu 21�eme si�ecle,” Revue Francaise de Droit A�erien et Spatial 220 (2004): 13.

34. For an analysis of Article 1 of the Chicago Convention and the concept of sovereignty as itapplies to national airspace, see King, supra note 19, at 407; Dempsey, supra note 10, at 44;Reinhardt, supra note 4, at 69–76; John Cobb Cooper, Roman Law and the Maxi “Cuius estSolum” in International Air Law (Montreal: McGill University Press, 1952), republished inExplorations in Aerospace Law: Selected Essays by John Cobb Cooper, edited by Ian Vlasic(Montreal: McGill University Press, 1968), 54–102; Francis Lyall, “The Maxim ‘Cuius estSolum’ in Scots Law,” Juridical Review 147 (1978): 69; and Herbert David Klein, “Cuius estSolum, Eius Est … Quousque tandem?,” Journal of Air Law and Commerce 26 (1959): 237.

35. See, for example, 49U.S. Code § 40103, “Sovereignty and Use of the Air Space.” The UnitedStates Code is the official compilation and codification of the general and permanentfederal statutes of the United States. Pursuant to 19 CFR, Chapter I—U.S. Customs andBorder Protection, Department of Homeland Security, § 122.0—Air Commerce Regulations,122.49b: “Electronic manifest requirement for crew members and non-crew membersonboard commercial aircraft arriving in, continuing within, and overflying the UnitedStates,” the term ‘Territorial Airspace of the United States’ means “the airspace over theUnited States, its territories, and possessions, and the airspace over the territorial watersbetween the United States coast and 12 nautical miles from the coast.” Available at www.gpo.gov/fdsys/pkg/CFR-2011-title19-vol1/pdf/CFR-2011-title19-vol1-sec122-49b.pdf.

36. John Cobb Cooper, “United States’ Participation in the Drafting of the Paris Convention,”Journal of Air Law and Commerce 18 (1951): 266; Daniel Goedhuis, “Civil Aviation Afterthe War,” American Journal of International Law 36 (1942): 596; Daniel Goedhuis,“Sovereignty and Freedom in the Airspace,” Transaction of Grotius Society 41 (1955): 137.

37. Abeyratne, supra note 31, at 14.38. See Articles 3 and 6 of the Chicago Convention. For further restricting measures on access

and use of the airspace in the United States, see www.faa.gov/uas/where_to_fly/airspace_restrictions.

39. See Dempsey, supra note 11, at 164–203; Roxanne Zolin and Ira Lewis, “Air NavigationServices and the United States: A Comparative Case Study,” Case Studies in Business and

22 H. LIU AND F. TRONCHETTI

Management 1 (2014): 96; ICAO Working Paper ATConf/6-WP/52, “Performance of AirNavigation Services,” available on the ICAO website.

40. The term ‘”SARPs” is used by ICAO to refer to the technical specifications adopted by itscouncil to achieve to achieve “the highest practicable degree of uniformity in regulations,standards, procedures and organization in relation to aircraft, personnel, airways andauxiliary services in all matters in which such uniformity will facilitate and improve airnavigation.” See Dempsey, supra note 11, at 61–65.

41. John Cobb Cooper, “High Altitude Flight and National Sovereignty,” in Explorations inAerospace Law: Selected Essays by John Cobb Cooper, edited by Ian Vlasic (Montreal: McGillUniversity Press, 1968), 256–258 [quoting Westlake].

42. Dean N. Reinhardt, “The Vertical Limit of State Sovereignty,” 72 Journal of Air Law &Commerce 72 (2007): 65.

43. Henry Jacobini, “Effective Control as Related to the Extension of Sovereignty in Space,”Journal of Public Law 7 (1958): 97.

44. John Cobb Cooper, “Legal Problems of Upper Space,” in International Air Law—Proceedings of the American Society of International Law’s Annual Meeting (Cambridge:ASIL,1956), 84, at 85–93.

45. International space law regulates objects launched into outer space, either in Earth orbitor beyond.

46. On the issue of delimitation between airspace and outer space see Lyall and Larsen, supranote 20, at 153; David Craig, “National Sovereignty at High Altitudes,” Journal of Air Lawand Commerce 24 (1957): 384; Cooper, supra note 40, 98; Thomas Cheney and LaurenNapier, “Policy Analysis: Air Versus Space, Where Do Suborbital Flights Fit intoInternational Regulations?” Journal of Science Policy and Government 7 (2015): 1.

47. The act is available at www.legislation.govt.nz/act/public/2017/0029/45.0/DLM6966275.html(accessed March 22, 2018).

48. For an analysis of the drafting of the Act, see Gareth Hughes, “Outer Space and High-Altitude Activities Bill—Third Reading,” available at www.greens.org.nz/news/speech/gareth-hughes-outer-space-and-high-altitude-activities-bill-third-reading.

49. Outer Space and –ndement and utilization of non- Using EEZ Precedent</rrh> as anopening for next summer. If you’omon beIashion. She laughed thouHigh-Altitude Act of2017, Part 1, “Preliminary Provisions,” Chapter 4 “Interpretations.”

50. Outer Space and High-Altitude Act of 2017, Part 2, Subpart 6, “High-altitude licenses,” 45.Requirements for high-altitude licenses.

51. Outer Space and High-Altitude Act of 2017, Part 2, Subpart 1, “Launch Licenses.”52. Outer Space and High-Altitude Act of 2017, Part 1 “Preliminary Provisions,” Chapter 4

“Interpretations.”53. 49U.S. Code § 40103—“Sovereignty and use of airspace.”54. 49US Code § 40103.55. Annex 7, Chicago Convention, supra note 28.56. In this respect, near-space vehicles can be divided into free floaters and maneuvering

vehicles. Free floaters’ flying speed and direction depend mostly on existing winds, eventhough they are also capable of limited steering that enables them to float at differentaltitudes and take advantage of different wind directions and speed. Instead, near-spacemaneuvering vehicles can use a variety of propulsion mechanisms to fly or keep stationaryover a specific area of interest. For example, high-altitude buoyant lift systems rise only toan altitude where the ambient air density equals the weight-to-volume ratio of the buoyantsystem. For more information, see Su, supra note 20, at 91.

57. A “High Altitude Platform Station” (HAPS) is defined in the International TelecommunicationUnion’s Radio Regulations (RR) No. S1.66 A as “A station located on an object at an altitude of20–50 km and at a specified, nominal fixed point relative to the Earth,” available atsearch.itu.int/history/HistoryDigitalCollectionDocLibrary/1.43.48.en.101.pdf.

58. The literature on the EEZ is extensive: for example, see Robin Churchill and VaughanLowe, The Law of the Sea (Manchester: Manchester University Press, 1999), 133–152; David

OCEAN DEVELOPMENT & INTERNATIONAL LAW 23

Joseph Attard, The Exclusive Economic Zone in International Law (Oxford: OxfordUniversity Press, 1987); Barbara Kwiatkowska, The 200 Miles Exclusive Economic Zone inthe New Law of the Sea (Dordrecht: Brill, 1989); Gemma Andreone, “The ExclusiveEconomic Zone,” in The Oxford Handbook of the Law of the Sea, edited by DonaldRothwell, Alex Oude Elferink, Karen Scott, and Tim Stephens (Oxford: Oxford UniversityPress, 2015) 159–180; Budislav Vukas, The Law of the Sea (Leiden: Brill, 2004), 83–111;Donald Rothwell and Tim Stephens, The International Law of the Sea (Oxford: HartPublishing, 2010), 82–97; Francis Rigaldies, “La zone �economique exclusive dans la pratiquedes �etats,” Canadian Yearbook of International Law 35 (1997): 3; Syma A. Ebbin, Alf H.Hoel, and Are Sydnes (editors), A Sea Change: The Exclusive Economic Zone andGovernance Institutions for Living Marine Resources (Springer Netherlands, 2005).

59. Robin Churchill, “The Impact of State Practice on the Jurisdictional Framework Containedin the LOS Convention,” in Stability and Change in the Law of the Sea: The Role of the LOSConvention, edited by Alex Oude Elferink (Leiden: Martinus Nijhoff Publishers,2005), 91–126.

60. Article 55, United Nations Convention on the Law of the Sea, adopted 10 December 1982,entered into force 16 November 1994, 1833 U.N.T.S. 1833 (hereinafter the LOSC).

61. See Franciso Orrego Vicu~na, “La Zone �Economique Exclusive: R�egime et Nature Juridiquedans le Droit International,” in Collected Courses of the Hague Academy of InternationalLaw (Leiden: Brill, 1986), 199; Moira L. McConnell, “Observations on the Law Applicableon the Continental Shelf and in the Exclusive Economic Zone: A Comparative View,”Ocean Yearbook 25 (2011): 221.

62. Rothwell and Stephens, supra note 54, at 84; Gemma Andreone and Giuseppe Cataldi, “SuiGeneris Zones,” in The IMLI Manual of International Maritime Law: The Law of the Sea,edited by David Attard, Malgosia Fitzmaurice, and Norman Martinez (Oxford: OxfordUniversity Press, 2014), 217–238; Francisco Orrego Vicu~na, The Exclusive Economic Zone:Regime and Legal Nature Under International Law (Cambridge: Cambridge University Press,1989), 44; Kwiatkowska, supra note 54, at 5.

63. See McConnell, supra footnote 57, at 225; Winston Conrad Extavour, A Study of theEvolution and Progressive Development of the International Law of the Sea (Leiden: Brill1979), 171–182. The territorial sea is considered as territory of the coastal state pursuant toArticle 1 of the 1958 Convention on the Territorial Sea and Contiguous Zone, adopted 29April 1958, entered into force 10 September 1964, 516 U.N.T.S. 205, and Articles 2 and 3 ofthe LOSC. Pursuant to Article 1 of the 1958 Convention on the High Seas, adopted 29April 1958, entered into force 30 September 1962, 450 U.N.T.S. 11, the water columnbeyond territorial waters was considered as high seas.

64. Proclamation with respect to Coastal Fisheries in Certain Areas of the High Seas, 28September 1945, Proclamation 2668 by U.S. President Harry S. Truman, available at www.presidency.ucsb.edu/ws/?pid¼58816. For a commentary on the proclamation see DouglasM. Johnston, The International Law of Fisheries (New Haven: Yale University Press,1965),333–338; Jean-Pierre Qu�eneudec, “La Remise en Cause du Droit de la Mer,” in Actualit�esdu droit de la mer—Colloque de Montpellier 1972, edited by Soci�et�e francaise pour le droitinternational (Paris: A. Pedone DL, 1973), 34–35.

65. Proclamation with respect to the Natural Resources of the Subsoil and the Sea-Bed of theContinental Shelf, 27 September 1945, Proclamation 2667 by U.S. President Henry S.Truman, available at www.trumanlibrary.org/proclamations/index.php.

66. For an analysis of these claims see Robert W. Smith, Exclusive Economic Zone Claims: AnAnalysis and Primary Documents (Dordrecht: Martinus Nijhoff Publishers, 1986).

67. Article 57 of the LOSC.68. In principle, states are free to claim an EEZ of a lesser breadth than 200 nautical miles and

to assert less than the full array of rights granted by the EEZ regime.69. For an extensive analysis of the rights given to coastal states and other states in the EEZ,

see Andreone, supra note 54, at 165–180; Robert Beckham and Tara Davenport, “The EEZRegime: Reflections After Thirty Years,” in Securing the Ocean for the Next Generation:

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Papers from the Law of the Sea Institute-Korea Institute of Ocean Science and TechnologyConference, edited by Harry N. Scheiber and Moon S. Kwon (Wollongong: AustralianNational Centre for Ocean Resources and Security, 2012), at www.law.berkeley.edu/files/Beckman-Davenport-final.pdf.

70. Article 56 of the LOSC.71. Articles 61 and 62 of the LOSC.72. On the distribution of fishing rights, see Tore Henriksen and Alf H. Hoel, “Determining

Allocation: From Paper to Practice in the Distribution of Fishing Rights BetweenCountries,” Ocean Development & International Law 42 (2011): 66.

73. Articles 61 and 62 of the LOSC. Part V also contains provisions that are specific to certaincategories of fisheries (see Articles 64–68 of the LOS).

74. Article 73 of the LOSC.75. Articles 62, 69, and 70 of the LOSC.76. Andreone, supra note 54, at 165–66; Ivan Shearer, “Ocean Management Challenges for the

Law of the Sea in the First Decade of the 21st Century,” in Ocean Management in the 21stCentury: Institutional Frameworks and Responses, edited by Alex Oude Elferink and DonaldRothwell (Leiden: Brill, 2004), 1–17.

77. Rothwell and Stephens, supra note 54, at 88. On the dispute settlement mechanism of theLaw of the Sea Convention see Alan E. Boyle, “Dispute Settlement and the Law of the Sea:Problems of Fragmentation and Jurisdiction,” International Comparative Law Quarterly 46(1997): 37.

78. On the management and utilization of nonliving resources, see David M. Ong, “Towards anInternational Law for Conservation of Offshore Hydrocarbon Resources within theContinental Shelf,” in The Law of the Sea: Progress and Prospects, edited by DavidFreestone, Richard Barnes, and David M. On (Oxford: Oxford University Press,2006), 93–110.

79. Article 60 of the LOSC.80. Articles 60(3) and 60(4) of the LOSC.81. Article 60(2) of the LOSC.82. Part. VII “High Seas” of the LOSC. See, particularly, Article 87, “Freedom of the

High Seas.”83. Rothwell and Stephens, supra note 54, at 93.84. Article 58(3) of the LOSC.85. Joseph N Pelton, “Urgent Security Concerns in the “Proto-Zone” (May 2016), Presentation

at the 4th International Manfred Lachs Conference on Conflicts in Space and the Rule ofLaw, McGill University, Institute of Air and Space Law Montreal, online: IASL www.mcgill.ca/iasl/files/iasl/mlc4_presentation_j_pelton.pptx, slide 3.

86. Paul S. Dempsey and Maria Manoli, Sub-orbital Flights and the Delimitation of Air SpaceVis-�a-vis Outer Space: Functionalism, Spatialism and State Sovereignty, A Submission bythe Space Safety Law & Regulation Committee of the International Association for theAdvancement of Space Safety, 57th Session of the Legal Subcommittee of the UnitedNations Committee on the Peaceful Uses of Outer Space, 9–20 April 2018, A/AC.105/C.2/2018/CRP.9.

87. “Sovereignty in the relations between States signifies independence” and “independence inregard to a portion of the globe is the right to exercise therein, to the exclusion of anyother State, the functions of a State.” See Island of Palmas Case (Netherlands, USA), Awardof 4 April 1928, II R.I.A.A. 829. On the concept of sovereignty, see among an abundantliterature: Sergio M. Carbone and Lorenzo Schiano di Pepe, “States, Fundamental Rightsand Duties,” in Max Planck Encyclopedia of Public International Law, edited by R€udigerWolfrum (Oxford: Oxford University Press, 2012) 566; Janice Thompson, “State Sovereigntyin International Relations: Bridging the Gap between Theory and Empirical Research,”International Studies Quarterly 39 (1995): 213; Antonio Cassese, International Law (Oxford,New York: Oxford University Press, 2005), 71–97.

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88. According to the right to equality (or equal treatment), all states occupy the same positionwithin the international community, have the same legal capacity, and bear equal rights andduties regardless of their size or power. The right has been enshrined, inter alia, in the UNGeneral Assembly, Declaration on Principles of International Law concerning FriendlyRelations and Cooperation among States in accordance with the Charter of the UnitedNations, 24 October 1970, A/RES/2625(XXV), www.refworld.org/docid/3dda1f104.html (seeParagraph 15); the Organization of African Unity (OAU), Charter of the Organization ofAfrican Unity, 25 May 1963, available at www.refworld.org/docid/3ae6b36024.html; and theOrganization of African Unity (OAU), Constitutive Act of the African Union, 1 July 2000,www.refworld.org/docid/4937e0142.html (see Paragraph 12). On the concept of equality,see, among many others, James Crawford, “The Criteria for Statehood in International Law,” British Yearbook of International Law 48 (1977): 93.

89. Federal Communications Commission, Action by the Commission on June 22, 2017 byOrder and Declaratory Ruling (FCC 17-77): “FCC Grants OneWeb Access to the USMarket for Its Proposed New Broadband Satellite Constellation,” www.fcc.gov/document/fcc-grants-oneweb-us-access-broadband-satellite-constellation.

90. According to Article VI of the 1967 Outer Space Treaty, a nongovernmental entity willingto undertake space activities must be authorized and continuously supervised by anappropriate state. Treaty on principles governing the activities of states in the explorationand uses of outer space, including the Moon and other celestial bodies (Outer SpaceTreaty), adopted 27 January 1967, entered into force 19 October 1967, 610 U.N.T.S. 8843.On Article VI see, for example, Frans Gerhard von der Dunk, “The Origins ofAuthorization: Article VI of the Outer Space Treaty and International Space Law,” inNational Space Legislation in Europe, edited by Frans Gerhard von der Dunk (Leiden: Brill,2011), 3–28.

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